Dhirendra Tiwari vs The State Of Madhya Pradesh
2024 Latest Caselaw 3006 MP

Madhya Pradesh High Court

Dhirendra Tiwari vs The State Of Madhya Pradesh on 1 February, 2024

Author: Maninder S. Bhatti

Bench: Maninder S. Bhatti

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                      HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                              ON THE 1 st OF FEBRUARY, 2024
                                         MISC. CRIMINAL CASE No. 55050 of 2023

                         BETWEEN:-
                         DHIRENDRA TIWARI S/O SHRI RADHESHYAM TIWARI,
                         AGED ABOUT 40 YEARS, OCCUPATION: CONSTABLE EM
                         109 NEAR SABRI BUS STAND NEHRU NAGAR KOLAR
                         ROAD DISTRICT BHOPAL (MADHYA PRADESH)

                                                                                          .....APPLICANT
                         (BY SHRI VAIBHAV KUMAR PANDEY - ADVOCATE)

                         AND
                         THE STATE OF MADHYA PRADESH THROUGH POLICE
                         STATION KOLAR ROAD DISTRICT BHOPAL (MADHYA
                         PRADESH)

                                                                                      .....RESPONDENTS
                         (BY MS. SHANTI TIWARI - PANEL LAWYER)

                               This application coming on for admission this day, the court passed the
                         following:
                                                             ORDER

This petition under Section 482 of Cr.P.C has been filed seeking quashment of order dated 19/07/2023 and to recall the witness (PW-1).

2. Learned counsel contends that pursuant to FIR lodged against the applicant under Sections 376, 354(a)(i), 452, 323, 324, 506 and 190 of IPC, the applicant is being prosecuted. During the course of trial, the prosecution adduced the evidence. The testimony of PW-1 prosecutrix was also recorded, however, as certain documents were not available with the counsel for the applicant, therefore, the prosecutrix could not be cross-examined properly. It is

contended by the counsel that in absence of certain documents, cross- examination of the prosecutrix was not possible.

3. It is contended by the counsel that the application filed under Section 311 of Cr.P.C. (Annexure A/3) reflects that in examination-in-chief, (PW-1) referred to some political party and stated that he was also working for a newspaper which was being published by the said party. Unfortunatly the question as regards the aforesaid aspect could not be asked. It is further contended by the counsel that the prosecutrix had given statement under Section 164 of Cr.P.C. and regarding her statement also, her cross-examination could not be conducted, thus submits that on account of above detailed

circumstances, recalling of PW-1 is necessary. Leaned counsel has placed reliance on the judgement passed by the Delhi High Court in the case of Vinod Rawat Vs. State in CRL.M.C. 4584/2022 and the judgment passed by the Allahabad High Court in Special Appeal No.417/2021 in Shiv Kumar Pandey Vs. State of U.P. through Secretary Agriculture & Ors.).

4. Per contra, Learned counsel for the State submits that this petition deserves to be dismissed inasmuch as there are serious allegations against the applicant. The statement of prosecutrix which has been brought on record reflects that the present applicant was not only guilty of commission of rape upon the complainant but also intended to molest the daughters of the prosecutrix and therefore such act of debauchery is not liable to be excused.

5. It is also contended by the counsel that the cross-examination of PW-1 reveals that she was subjected to cross examination exhaustively and the application filed under Section 311 of Cr.P.C. was merely a device to unnecessarily prolong the proceedings. It is contended by the counsel that examination-in-chief of prosecutrix (PW-1) was recorded on 24/10/2019 and

her cross-examination was then deferred at the request of the counsel for the applicant. Later on 09/01/2023 the cross-examination was completed by the counsel of the applicant, thus submits that no interference is warranted.

6. No other point is pressed or argued by the parties.

7. Heard rival submissions of the parties and perused the record.

8. In the present case an application filed by the applicant under Section 311 of Cr.P.C.has been rejected by the trial Court. It is evident from the perusal of the order impugned that examination-in-chief of the prosecutrix was completed on 24/10/2019. For the purposes of cross-examination, time was sought by the counsel for the applicant. Later on 09/01/2023 the cross examination was completed. Therefore, it is evident that from October, 2019 till January 2023, there was a period of approximately 3 years for the petitioner to carry out the preparation of cross-examination. Even assuming that certain period was effected by outbreak of covid-19, still, as the restrictions were no more in existence from 2022 onwards, therefore, the applicant had sufficient time for preparation for the purposes of cross-examination. The trial Court while placing reliance on the decision of the Apex Court in the case of Inder Vs. Aabida reported in AIR 2007 SC 3029 rightly concluded that the power under Section 311 of Cr.P.C., cannot be used to fill up the lacuna.

9. Thus in the considered view of this Court, the trial Court has not

committed any error in rejecting the application filed by the applicant under Section 311 of Cr.P.C. The judgment relied upon by the applicant are distinguishable on facts.

10. Accordingly, petition filed under Section 482 of Cr.P.C stands dismissed.

(MANINDER S. BHATTI) JUDGE Astha